STATE OF WEST BENGAL Vs. SHAMBHU HELA

JUDGEMENT

(1.) This rule is at the instance of the Superintendent and Remembrancer of Legal Affairs, West Bengal, on behalf of the State of West Bengal, praying that the Sessions trial, arising out of C.R. Case No. 100 of 1972, now pending before the City Sessions Court, may be tried under Section 9(1A) of the City Sessions Court Act, 1953, by the learned Judge, City Sessions Court, himself without a jury.

(2.) The facts leading on to the rule can be put in a short compass. The prosecution case, inter alia, is that on March 29, 1971, at about 19.00 hours all the accused persons including the absconding accused Amarendra Nath Pal and Shyamdas and one Timir Guha (now approver) entered into a criminal conspiracy at the residence of the accused Jadav Dutt at 38 Balaram Majumdar Street, Calcutta, to commit the murder of Nepal Roy M.L.A., and in pursuance thereof they took positions on the next day id est March 30, 1971, at about 12.30 hours, in the vicinity of the office of the said Nepal Roy at 292/6 Upper Chitpore Road (Rabindra Sarani). It is alleged that the absconding accused Amarendra @ Bhombal rushed into the said office-room with an unlicensed improvised revolver and fired a shot at Nepal Roy who was then seated on a chair and talking to visitors and, thereafter, each of the accused Shambhu, Monoranjan and Bimal, at the instruction of the accused Swapan, threw a bomb successively into the room causing injuries to one Ajit Chakraborty and damage to his properties. Nepal Roy was immediately removed to the Medical College Hospital at about 13 00 hours where he was declared dead. On investigation the Police submitted a charge-sheet under Section 120B read with Section 302, Indian Penal Code, against nine accused persons of whom two were absconding and one turned an approver as mentioned above. Following an enquiry under Section 207A, Code of Criminal Procedure, Sri P. Ghatak, Presidency Magistrate, Ninth Court, Calcutta, by his order dated November 17, 1972, committed all the six accused opposite parties to stand their trial in the City Sessions Court on charges under Section 302 read with Section 120B of the Indian Penal Code and Section 302 read with Section 109 of the Indian Penal Code against all; and the accused Shambhu alias Shankar Hela and Monoranjan alias Mantu Das on a further charge under Section 3 of the Explosive Substances Act. The Superintendent and Remembrancer of Legal Affairs, West Bengal, on behalf of the State of West Bengal thereafter moved an application under Section 9(1A) of the City Sessions Court Act, 1953, stating, inter alia, that there were no less than 82 witnesses including several witnesses to the occurrence and, as such, the trial was not likely to be concluded within two weeks from its commencement and that the case involved consideration of evidence of a highly technical nature, relating to Fire Arms and Explosive Substances Act, and, as such, the case should be tried by the learned Judge himself without a jury. The present rule was thereupon issued.

(3.) Mr. Rajesh Chandra Ghosh, D.L.R. (with Mr. Promode Ranjan Roy, Jr. Govt. Advocate) appearing in support of the rule on behalf of the Superintendent and Remembrancer of Legal Affairs, West Bengal, made a two-fold submission. Mr. Ghosh contended in the first instance that, in view of the volume and complexity of the evidence to be adduced in the case, the trial was not likely to be concluded within two weeks from its commencement and, as such, it was desirable that it should be tried without a jury. The second branch of Mr. Ghosh's contention was that the trial would involve a consideration of evidence of a highly technical nature rendering it undesirable that it should be tried by a jury. In this context he referred to the charge under the Explosive Substances Act and also the general nature of the case involving serious offences and submitted ultimately that this was a fit and proper case coming within the bounds of Section 9(1A) of the City Sessions Court Act, 1953. Mr. Niharendu Dutt Majumdar, Senior Advocate (with Mr. Shib Sankar Sarkar, Advocate), appearing on behalf of the opposite party No. 6 joined issue. Mr. Dutt Majumdar has submitted that the grounds raised on behalf of the prosecution are more technical than real, inasmuch as in the first instance most of the witnesses are formal witnesses and, therefore, the trial is not expected to take a considerable time; and secondly, the law relating to Fire and Explosive Substances Act is not of such a highly technical nature that a trial by jury should not take place. Besides giving his reply to the two-fold contention of the learned Deputy Legal Remembrancer, in support of the rule, Mr. Dutt Majumdar also raised a preliminary objection challenging the vires of Sub-Section 1(A) to Section 9 of the City Sessions Court Act, 1953. The objection is of two dimensions. The first dimension of the objection is that the said provisions are bad, being repugnant to the earlier provisions laid down under Section 9(1) of the City Sessions Court Act, 1953, and, as such, are in non-conformance to procedure established by law. Mr. Dutt Majumdar, in this context, urges that the accused has a vested right in procedure, viz. a trial by the jury as enjoined under Section 9 of the City Sessions Court Act, 1953, and a non-conformance thereto amounts to a non-conformance to procedure established by law vitiating the ultimate trial. The second dimension of Mr. Dutt Majumbar's objection to such maintainability relates to the vires of Sub-Section 1(A) to Section 9, City Sessions Court Act, 1953, on the ground of reasonableness under Article 14 of the Constitution of India which provides for enabling powers without laying down any regulating standard for a reasonable application thereof without any discrimination. Mr. Dutt Majumdar ultimately submits that a jury trial is a precious right conferred on the citizens of the State and the denial thereof is not only a denial of justice but also of a proper opportunity to the accused to establish his innocence before the world. Mr. Ashim Kumar Mukherjee, Advocate, appearing on behalf of the opposite party No. 4 adopted the arguments put forward by Mr. N. Dutt Majumdar, Sr. Advocate.